Conyers’ Inquiries into Bush Criminality May Put Obama in a Bind

Congressional Quarterly
Conyers’ Inquiries May Put Obama in a Bind
By Keith Perine, CQ Staff

House Judiciary Chairman John Conyers Jr. is plowing ahead with aggressive inquiries into Bush administration people and policies, possibly setting up confrontations with the more cautious Obama administration.

Conyers, D-Mich., has made several moves, with the blessing of House Democratic leaders, that could force President Obama’s hand on the delicate political question of investigating the previous administration.

“While I understand there is a powerful desire to simply move on and focus on the many large issues facing us, we simply cannot sweep these matters under the rug of history without addressing them head on,” Conyers wrote in a foreword to a lengthy majority report issued by committee staff Jan. 13.

Obama and his nominee for attorney general, Eric H. Holder Jr., have been circumspect about whether and how hard they will probe Bush administration actions on such subjects as detainee interrogation, warrantless surveillance and allegations of politically motived prosecutions.
But Conyers is probing, working closely with House Democratic leaders and armed with authority under House rules to reissue subpoenas on some matters from the last Congress without formal committee action. The committee has also briefed Obama aides on its inquiries.
“We are not sticking our finger in anyone’s eye, but rather are trying to discharge Congress’ institutional responsibilities,” a Democratic committee aide said.
Conyers is still smarting from the criticism liberal activists heaped on him after he bowed to the wishes of House Democratic leaders in the 110th Congress and declined to pursue the impeachment of President George W. Bush and Vice President Dick Cheney. But his persistence now is inconvenient for Obama, who wants to keep the focus on an economic stimulus package (HR 1) now speeding through Congress.
The Judiciary Committee’s majority staff report urged the Justice Department to launch a criminal investigation into the Bush administration’s treatment of detainees and warrantless surveillance of U.S. citizens.
But Holder said during his Jan. 15 confirmation hearing before the Senate Judiciary Committee that while the new administration “will follow the evidence, the facts, the law, and let that take us where it should,” the administration does not want to “criminalize policy differences that might exist between the outgoing administration and the administration that is about to take over.”
Conyers introduced legislation (HR 104) on the first day of the 111th Congress to create a commission to investigate Bush administration policies on detention, interrogation, warrantless surveillance and other matters.
Five days later, during an ABC television appearance, Obama reacted coolly to the idea. “I have not made final decisions, but my instinct is for us to focus on how do we make sure that, moving forward, we are doing the right thing,” Obama said. “That doesn’t mean that, if somebody has blatantly broken the law, that they are above the law. But my orientation’s going to be to move forward.”
On Jan. 26, Conyers exercised authority under the new House rules package (H Res 5) to subpoena former Bush political adviser Karl Rove to appear and be questioned at a Feb. 2 deposition. Conyers is probing what role Rove may have played in the firings of nine U.S. attorneys in 2006, as well as in Justice Department prosecutions alleged to have been politically motivated.
Rove refused to comply with a subpoena last year, after Bush invoked executive privilege. The new subpoena could spur Obama to take a position on whether former presidents can shield their advisers from complying with congressional subpoenas.
Rove’s attorney, Robert D. Luskin, has made it clear that Rove will wait to see how Bush, Obama, and perhaps a federal court resolve any disagreement on executive privilege claims by former presidents.
Bolten, Miers Lawsuit Conyers and House Democratic leaders also made a series of moves in the committee’s pending lawsuit against Bush White House aides Joshua B. Bolten and Harriet Miers, ensuring that Obama inherited that controversy as well.
After Bush invoked executive privilege, Bolten and Miers did not comply with committee subpoenas in 2007 that sought documents and, in Miers’ case, testimony related to the federal prosecutor firings. U.S. District Judge John D. Bates ruled last July that Bolten and Miers were not immune from the House Judiciary subpoenas. The Bush administration appealed the decision to the U.S. Court of Appeals for the District of Columbia Circuit.
In November, House lawyers proposed that Bolten and Miers file their initial brief Feb. 18 — after Bush’s term was finished. The D.C. Circuit adopted that proposal.
Rather than risking an appeals court decision that the case was moot because the committee subpoenas expired at the end of the 110th Congress, Conyers reissued subpoenas to Bolten and Miers earlier this month. And House lawyers successfully urged Bates to issue an order requiring Bush administration officials to leave a complete set of the documents at issue at the White House for Obama and his aides, rather than allow the one physical set of documents in existence to be shipped to the National Archives.
The new administration has until Feb. 18 to decide whether it will honor Bush’s privilege claim and whether it will continue to represent Bolten and Miers in a case with weighty legal implications for Obama and future presidents on the question of executive privilege.
Lamar Smith of Texas, the top-ranking House Judiciary Republican, said, “No good purpose is served by persecuting those who are no longer in office.” Regarding the idea of a commission to investigate the Bush administration, Smith said, “I agree with the president. We should be looking forward, not backward.”

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